CHAPTER VIII
RESIDENTS OF FEDERAL ENCLAVES
EFFECTS OF TRANSFERS OF LEGISLATIVE JURISDICTION: In general.--
With the transfer of sovereignty, which is implicit in the transfer
of exclusive legislative jurisdiction, from a State to the Federal
Government, the latter succeeds to all the authority formerly held by
the State with respect to persons within the area as to which
jurisdiction was transferred, and such persons are relieved of all
their obligations to the State. Where partial jurisdiction is
transferred, the Federal Government succeeds to an exclusive right to
exercise some authority formerly possessed by the State, and persons
within the area are relieved of their obligations to the State under
the transferred authority. And transfer of legislative jurisdiction
from a State to the Federal Government has been held to affect the
rights, or privilege, as well as the obligations, of persons under
State law. specifically, it has been held to affect the rights of
residents of areas over which jurisdiction has been transferred to
receive an education in the public schools, to vote and hold public
office, to sue for a divorce, and to have their persons, property, or
affairs subjected to the probate or lunacy jurisdiction of State
courts; it has also been interpreted as affecting the right of such
residents to receive various other miscellaneous services ordinarily
rendered by or under the authority of the State.
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Education.--The question whether children resident upon areas
under the legislative jurisdiction of the Federal Government are
entitled to a public school education, as residents of the State
within the boundaries of which the area is contained, seems first to
have been presented to the Supreme Judicial Court of Massachusetts in
a request for an advisory opinion by the Massachusetts House of
Representatives. The House sought the view of the court on the
question, inter alia:
Are persons residing on lands purchased by, or ceded to, the
United States, for navy yards, arsenals, dock yards, forts,
light houses, hospitals, and armories, in this Commonwealth,
entitled to the benefits of the State common schools for their
children, in the towns where such lands are located?
The opinion of the court (Opinion of the Justices, 1 Metc. 580
(Mass., 1841)), reads in pertinent parts as follows (pp. 581-583):
The constitution of the United States, Art. 1, Sec. 8, provides
that congress shall have power to exercise exclusive legislation
in all cases whatsoever, over all places purchased by the
consent of the legislature of the State in which the same shall
be, for the erection of forts, magazines, arsenals, dock yards
and other needful buildings. The jurisdiction in such cases is
put upon the same ground as that of district ceded to the United
States for the seat of government; and, unless the consent of
the several States is expressly made conditional or limited by
the act of cession, the exclusive power of legislation implies
an exclusive jurisdiction; because the laws of the several
States no longer operate within those districts.
* * * * *
and consequently, that no persons are amenable to the laws of
the Commonwealth for crimes and offences committed within said
territory, and that persons residing
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within the same do not acquire the civil and political
privileges, nor do they become subject to the civil duties and
obligations of inhabitants of the towns within which such
territory is situated.
The court then proceeded to apply the general legal principles which
it had thus defined to the specific question concerning education (p.
583):
We are of opinion that persons residing on lands purchased by,
or ceded to, the United States for navy yards, forts and
arsenals, where there is no other reservation of jurisdiction to
the State, then that above mentioned [service of process], are
not entitled to the benefits of the common schools for their
children, in the towns in which such lands are situated.
The nest time the question was discussed by a court it was again
in Massachusetts, in the case of Newcomb v. Rockport, 183 Mass. 74,
66 N.E. 587 (1909). There, however, while the court explored Federal
possession of legislative jurisdiction as a possible defense to a
suit filed to require a town to provide school facilities on two
island sites of lighthouses, the court's decision adverse to the
petitioners actually was based on an absence of authority in the town
to construct a school, and the possession of discretion by the town
as to whether it would furnish transportation, under Massachusetts
law, even conceding that the Federal Government did not have
exclusive jurisdiction over the islands in question. The legal
theories underlying the two Massachusetts cases mentioned above have
constituted the foundation for all the several decisions on rights to
public schooling of children resident on Federal lands. Where the
courts have found that
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legislative jurisdiction over a federally owned area has remained in
the State, they have upheld the right of children residing on the
area to attend State schools on an equal basis with State children
generally; where the courts have fond that legislative jurisdiction
over an area has been vested in the United States, they denied the
existence of any right in children residing on the area to attend
public schools, on the basis, in general, that Federal acquisition of
legislative jurisdiction over an area places the area outside the
State or the school district, whereby the residents of the area are
not residents of the State or of the school district. Further, where
a school building is located on an area of exclusive Federal
jurisdiction it has been held (Op.A.G., Ind., p. 259 (1943)) the
local school authorities have no jurisdiction over the building, are
not required to furnish school facilities for children in such
building, and if they do the latter with
219
money furnished by the Federal Government they are acting as Federal
agents. There should be noted, however, the small number of instances
in which the right of children residing in Federal areas to a public
school education has been questioned in the courts. This appears to
be due in considerable part to a feeling of responsibility in the
States for the education of children within their boundaries,
reflected in such statutes as the 1935 act of Texas (Art. 275b,
Vernon's Ann. Civil Statutes), which provides for education of
children on military reservations, and section 79-446 of the Revised
Statutes of Nebraska (1943), which provides for admission of children
of military personnel to public schools without payment of tuition.
In recent years a powerful factor in curtailing potential litigation
in this field has been the assumption by the Federal Government of a
substantial portion of the financial burden of localities in the
operation and maintenance of their schools, based on the impact which
Federal activities have on local educational agencies, and without
regard to the jurisdiction status of the Federal area which is
involved. Voting and office holding.--The Opinion of the Justices, 1
Metc. 580 (Mass., 1841), anticipated judicial decisions concerning
the right of residents of Federal enclaves to vote,
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as it anticipated decisions relating to their rights to a public
school education and in several other fields. One of the questions
propounded to the court was:
Are persons so residing [on lands under the exclusive
jurisdiction of the United States] entitled to the elective
franchise in such towns [towns in which such lands are located]?
After stating that persons residing in areas under exclusive Federal
jurisdiction did not acquire civil and political privileges thereby,
the court said (p. 584):
We are also of the opinion that persons residing in such
territory do not thereby acquire any elective franchise as
inhabitants of the towns in which such territory is situated.
The question of the right of residents of a Federal enclave to
vote, in a county election, came squarely before the Supreme Court of
Ohio, in 1869, in the case of Sinks v. Reese, 19 Ohio St. 306 (1869).
Votes cast by certain residents of an asylum for former military and
naval personnel were not counted by election officials, and the
failure to count them was assigned as error. The State had consented
to the purchase of the lands upon which the asylum was situated, and
had ceded jurisdiction over such lands.
However, the act of cession provided that nothing therein should
be construed to prevent the officers, employees, and inmates of the
asylum from exercising the right of suffrage. The court held that
under the provisions of the Constitution of the United States and the
cession act of the State of Ohio the grounds of the asylum had been
detached and set off from the State, that the Constitution of the
State of Ohio required that electors be residents of the State, that
it was not constitutionally permissible for the general assembly of
the State to confer the elective franchise upon
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non-residents, and that all votes of residents of the area should
therefore be rejected. The Opinion of the Justices and the decision
in Sinks v. Reese have been followed, resulting in a denial of the
right of suffrage to residents of areas under the legislative
jurisdiction of the United States, whatever the permanency of their
residence, in nearly all cases where the right of such persons to
vote, through qualification by residence on the Federal area, has
been questioned in the courts. In some other instances, which should
be distinguished, the disqualification has been based on a lack of
permanency of the residence (lack of domicile) of persons resident on
a Federal area, without reference to the jurisdictional status of the
area, although in similar instances the courts have held that
residence on a Federal area can constitute a residence for voting
purposes. The courts have generally ruled that residents of a
federally owned area may qualify as voters where the Federal
Government has never
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acquired legislative jurisdiction over the area, where legislative
jurisdiction formerly held by the Federal Government has been
retroceded by act of Congress, or where Federal legislative
jurisdiction has terminated for some other reason. Attorneys General
of several States have had occasion to affirm or deny, on similar
grounds, the right of residents of federally owned areas to vote. In
Arapajolu v. McMenamin, 113 Cal. App.2d 824, 249 P.2d 318 (1952), a
group of residents, military and civilian, of various military
reservations situated in California, sought in an action of mandamus
to procure their registration as voters. The court recognized (249
P.2d at pp. 319-320) that it had been consistently held that when
property was acquired by the
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United States with the consent of the State and consequent
acquisition of legislative jurisdiction by the Federal Government the
property "ceases in legal contemplation to be a part of the territory
of the State and hence residence thereon is not residence within the
State which will qualify the resident to be a voter therein."
Reviewing the cases so holding, the court noted that all but one,
Arledge v. Mabry, supra, had been decided before the United States
had retroceded to the States, with respect to areas over which it had
legislative jurisdiction, the right to apply State unemployment
insurance acts, to tax motor fuels, to levy and collect use and sales
taxes, and to levy and collect income taxes. In Arledge v. Mabry,
the court suggested, the retrocession had not been considered and the
case had been decided (erroneously) on the basis that the United
States still had and exercised exclusive jurisdiction. The court
concluded (149 P.2d 323):
The jurisdiction over these lands is no longer full or complete
or exclusive. A substantial portion of such jurisdiction now
resides in the States and such territory can no longer be said
with any support in logic to be foreign to California or outside
of California or without the jurisdiction of California or
within the exclusive jurisdiction of the United States. It is
our conclusion that since the State of California now has
jurisdiction over the areas in question in the substantial
particulars above noted residence in such areas is residence
within the State of California entitling such residents to the
right to vote given by sec. 1, Art. II of our Constitution.
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The several cases discussed above all related to voting, rather
than office-holding, although the grounds upon which they were
decided clearly would apply to either situation. The case of Adams
v. Londeree, 139 W.Va. 748, 83 S.E.2d 127 (1954), on the other hand,
involved directly the question whether residence upon an area under
the legislative jurisdiction of the United States qualified a person
to run for and hold a political office the incumbent of which was
required to have status as a resident of the State. The court said
(83 S.E.2d at p. 140) that "in so far as this record shows, the
Federal Government has never accepted, claimed or attempted to
exercise, any jurisdiction as to the right of any resident of the
reservation [as to which the State had reserved only the right to
serve process] to vote." Hence, the majority held, a resident of the
reservation, being otherwise qualified, was entitled to vote at a
municipal, county, or State election, and to hold a municipal,
county, or State office. A minority opinion filed in this case
strongly criticizes the decision as contrary to judicial precedents
and unsupported by any persuasive text or case authority.
While Arapajolu v. McMenamin and Adams v. Londeree apparently
are the only judicial decisions recognizing the existence of a right
to vote or hold office in persons by reason of their residence on
what has been defined for the purposes of this text as an exclusive
Federal jurisdiction area, reports form Federal agencies indicate
that residents of such areas under their supervision in many
instances are permitted to vote and a few States have by statute
granted voting rights to such residents (e.g., California, Nevada (in
some instances), New Mex-
225
ico, and Ohio (in case of employees and inmates of disabled soldiers'
homes)). On the other hand, one State has a constitutional
prohibition against voting by such persons, decisions cited above
demonstrate frequent judicial denial to residents of exclusive
Federal jurisdiction areas of the right to vote, and it is clear that
many thousand residents of Federal areas are disenfranchised by
reason of Federal possession of legislative jurisdiction over such
areas.
Divorce.--The effect upon a person's right to receive a divorce
of such person's residence on an area under the exclusive legislative
jurisdiction of the United States was the subject of judicial
decision for the first time, it appears, in the case of Lowe v. Lowe,
150 Md. 592, 133 Atl. 729 (1926). The statute of the State of
Maryland which provided the right to file proceedings for divorce
required residence of at least one of the parties in the State. The
parties to this suit resided on an area in Maryland acquired by the
Federal Government which was subject to a general consent and cession
statute whereby the State reserved only the right to serve process,
and were not indicated as being residents of Maryland unless by
virtue of their residence on this area.
Reviewing judicial decisions and other authorities holding to
the general effect that the inhabitants of areas under the exclusive
legislative jurisdiction of the Federal Government (133 Atl. at p.
732) "cease to be inhabitants of the state and can no longer exercise
any civil or political rights under the laws of the state," and that
such areas themselves (ibid., p. 733) "cease to be a part of the
state," the court held that residents of areas under exclusive
Federal jurisdiction are not such residents of the State as would
entitle them to file a bill for divorce. The case of Chaney v.
Chaney, 53 N.M. 66, 201 P.2d 782
226
(1949), involved a suit for divorce, with the parties being persons
living at Los Alamos, New Mexico, on lands acquired by the Federal
Government which were subject to a general consent statute whereby
the State of New Mexico reserved only the right to serve process. The
State divorce statute provided that the plaintiff "must have been as
actual resident, in good faith, of the state for one (1) year next
preceding the filing of his or her complaint * * *."
The court, applying Arledge v. Mabry, held concerning the area
under Federal legislative jurisdiction that "such land is not deemed
a part of the State of New Mexico," and that "persons living thereon
do not thereby acquire legal residence in New Mexico." Accordingly,
following Lowe v. Lowe, supra, it found that residence on such area
did not suffice to supply the residence requirement of the State
divorce statute.
The Lowe and Claney cases appear to be the only cases in which a
divorce was denied because of the exclusive Federal jurisdiction
status of an area upon which the parties resided. However, in a
number of cases, some involving Federal enclaves, it has been held
that personnel of the armed forces (and their wives) are unable,
because of the temporary nature of their residence on a Government
reservation to which they have been ordered, to establish on such
reservation the residence or domicile required for divorce under
State statutes.
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(1933), where the court suggested the existence of substantive
divorce law as to Fort Benning, Georgia, under the international law
rule, since the United States had exclusive legislative jurisdiction
over the area, but held that there were absent in the State a
domicile of the parties and a forum for applying the law. The Lowe,
Chaney, Pendleton, and Dicks decisions had an influence on the
enactment, in the several States involved, of amendments to their
divorce laws variously providing a venue in courts of the respective
States to grant divorces to persons resident on Federal areas.
Similar statutes have been enacted in a few other States.
The case of Graig v. Graig, 143 Kan. 624, 56 P.2d 464 (1936),
clarification denied, 144 Kan. 155, 58 P.2d 1101 (1936), brought
after amendment of the Kansas law, provides a sequel to the decision
in the Pendleton case. The court ruled in the Graig case that the
Kansas amendment, which provided that any person who had resided for
one year on a Federal military reservation within the State might
bring an action for divorce in any county adjacent to the
reservation, required mere "residence" for this purpose, not "actual
residence" or domicile," with their connotations of permanence. The
amendment, the court said in directing the entry of a decree of
divorce affecting an Army officer and his wife residing on Fort
Riley, provided a forum for applying the law of divorce which had
existed at the time of cession of jurisdiction over the military
reservation to the Federal Government. The Dicks case similarly has
as a sequel the case of Darbie v.
228
Darbie, 195 Ga. 769, 25 S.E.2d 685 (1943). In the Darbie case a
Georgia amendment to the same effect as the Kansas amendment was the
basis for the filing of a divorce suit by an Army officer residing on
Fort Benning. The divorce was denied, but apparently only because
the petition was filed in a county which, although adjacent to Fort
Benning, was not the county wherein the fort was situated, and
therefore the filing was held not in conformity with a provision of
the Georgia constitution (art. 6, ch 2-43, sec. 16) requiring such
suits to be brought in the county in which the parties reside. The
Georgia constitution has been amended (see sec. 2-4901) so as to
eliminate the problem encountered in the Darbie case, and, in any
event, because of its basis the decision in the case casts no
positive judicial light on the question whether the State has
jurisdiction to furnish a forum and grant a divorce to residents of
an area under exclusive Federal jurisdiction.
The case of Crownover v. Crownover, 58 N.M. 597, 274 P.2d 127
(1954), furnishes a sequel to the Chaney case. The Crownover case
was brought under the New Mexico amendment, which provides that for
the purposes of the State's divorce laws military personnel
continuously stationed for one year at a base in New Mexico shall be
deemed residents in good faith of the State and of the county in
which the base is located. The court affirmed a judgment granting a
divorce to a naval officer who, while he was stationed in New Mexico,
was physically absent from the State for a substantial period of time
on temporary duty, holding that the "continuously stationed"
requirement of the statute was met by the fact of assignment to a New
Mexico base as permanent station. An
229
objection that "domicile" within the State (not established in the
case except through proof of residence under military orders) is an
essential base for the court's jurisdiction in a divorce action was
met by the court with construction of the New Mexico amendment as
creating a conclusive statutory presumption of domicile. The opinion
rendered by the court, and a scholarly concurring opinion rendered by
the chief justice (58 N.M. 609), defended the entitlement of the
court's decision to full faith and credit by courts of other States.
Military personnel and, indeed, civilian Federal employees and others
residing on exclusive Federal jurisdiction areas may possibly retain
previously established domiciles wherein would lie a venue for
divorce. It may well occur, however, that such a person has no
identifiable domicile outside an exclusive jurisdiction area.
Federal courts, other than those for the District of Columbia, and
for Territories, have no jurisdiction over divorce. A resident of an
exclusive jurisdiction area therefore may have recourse only to a
State court in seeking the remedy of divorce. Absent a bona fide
domicile within the jurisdiction of the court of at least one of the
parties, there is the distinct possibility that a divorce decree may
be collaterally attacked successfully in a different jurisdic-
230
tion. As to persons residing on exclusive Federal jurisdiction
areas, therefore, it would seem that even if there is avoided an
immediate denial of a divorce decree on the precedent of the Lowe and
Chaney cases, the theory of these cases may possibly be applied under
the decision in Williams v. North Carolina, 325 U.S. 226 (1945), to
invalidate any decree which is procured.
Probate and lunacy proceedings generally.--In the case of Lowe
v. Lowe, discussed above, Chief Justice Bond, in an opinion
concurring in the court's holding that it had no jurisdiction to
grant a divorce to residents of an exclusive Federal jurisdiction
area, added concerning such persons (150 Md. 592, 603, 133 A. 729,
734): "and I do not see any escape from the conclusion that ownership
of their personal property, left at death, cannot legally be
transmitted to their legatees or next of kin, or to any one at all;
that their children cannot adopt children on the reservations; that
if any of them should become insane, they could not have the
protection of statutory provisions for the care of the insane--and so
on, through the list of personal privileges, rights, and obligations,
the remedies for which are provided for residents of the state."
On the other hand, in Divine v. Unaka National Bank, 125 Tenn.
98, 140 S.W. 747 (1911), it was asserted that the power to probate
the will of one who was domiciled, and who had died, on lands under
the exclusive legislative jurisdiction of the United States was in
the local State court. In In re Kernan, 247 App. Div. 664, 288
N.Y.Supp. 329 (1936), a New York court held that the State's courts
could determine, by habeas corpus proceedings, the right to custody
of an infant
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who lived with a parent on an area under exclusive Federal
jurisdiction. In both these cases the reasoning was to the general
effect that, while the Federal Government had been granted exclusive
legislative jurisdiction over the area of residence, it had not
chosen to exercise jurisdiction in the field involved, and the State
therefore could furnish the forum, applying substantive law under the
international law rule.
In Shea v. Gehan, 70 Ga.App. 229, 28 S.E.2d 181 (1943), the
Court of Appeals of Georgia decided that a county court had
jurisdiction to commit a person to the United States Veterans'
Administration Hospital in the county as insane, although such
hospital was on land ceded to the United States and the person found
to be insane was at the time a patient in the hospital and a non-
resident of Georgia. The decision in this case was based on a their
that State courts have jurisdiction over non-resident as well as
resident lunatics found within the State, but the exclusive Federal
jurisdiction status of the particular area within the boundaries of
the State on which the lunatic here was located does not seem to have
attracted the attention of the court. These appear to be the only
judicial decisions, Federal or State, other than the divorce cases
discussed above, wherein there has been a direct determination on the
question of existence of jurisdiction in a State to carry on a
probate proceeding on the basis of a residence within the boundaries
of the State on an exclusive Federal jurisdiction area.
On one occasion, where no question of Federal legislative
232
jurisdiction was raised, the Attorney General of the United States
held that the property of an intestate who had lived on a naval
reservation should be turned over to an administrator appointed by
the local court, but in a subsequent similar instance, where Federal
legislative jurisdiction was a factor, he held that the State did not
have probate jurisdiction. And in a letter dated April 15, 1943, to
the Director of the Bureau of the Budget, the Attorney General
stated:
It is intimated in the [Veterans' Administration]
Administrator's letter to you that the States probably have
probate jurisdiction over Federal reservations. I am unable to
concur in this suggestion. This Department is definitely
opinion by one of my predecessors (19 Ops.A.G. 247) it was
expressly held, after a thorough review of the authorities and
all the pertinent considerations, that State courts do not have
probate jurisdiction over Federal reservations. While there is
one case holding the contrary (Divine v. Bank, 125 Tenn. 98),
nevertheless the Attorney General's opinion must be considered
binding on the Executive branch of the Federal Government unless
and until the Federal courts should take an opposite view of the
matter.
The Judge Advocate General of the Army has held similarly, and in
several opinions he has stated that: "Generally, the power and
concomitant obligation to temporarily restrain and care for persons
found insane in any area rests with the Government exercising
legislative jurisdiction over that area; permanent care or
confinement is more logically assumed by the Government exercising
general jurisdiction over the area of the person's residence." The
Judge Advocate General of the Navy
233
has held, to the same effect, that in view of the fact that the
United States has exclusive jurisdiction over the site of the
Philadelphia Navy Yard, it would be inconsistent to request
assistance of State authorities to commit as insane a person who
committed a homicide within the reservation.
It is evident that questions regarding the probate jurisdiction
of a State court with relation to a person residing on an exclusive
Federal jurisdiction area would not arise in instances where the
persons is domiciled within the State as a result of factors other
than mere residence on the Federal area. But it appears that some
persons have no domicile except on a Federal area. Presumably in
recognition of this fact, a number of States have enacted statutes
variously providing a forum for the granting of some degree of
probate relief to residents of Federal areas. Except as to such
statutes relating to divorce, discussed earlier herein, appellate
courts appear not to have had occasion to review the aspects of these
statues granting such relief.
234
It is evident, also, that the jurisdictional question is not
likely to arise in States under the statutes of which residence or
domicile is not a condition precedent to the assumption of probate
jurisdiction by the courts. So, in Bliss v. Bliss, 133 Md. 61, 104
Atl. 467 (1918), it was stated (p. 471): "as the jurisdiction of the
courts of equity to issue writs de lunatico unquirendo is exercised
for the protection of the community, and the protection of the person
and the property of the alleged lunatic, there is no reason why it
should be confined to cases in which the unfortunate persons are
residents of or have property in the state. It is their presence
within the limits of the state that necessitates the exercise of the
power to protect their persons and the community in which they may be
placed, and the jurisdiction of the court does not depend upon
whether they also have property within the state. The Uniform
Veterans Guardianship Act, all or some substantial part of which has
been adopted by approximately 40 States, section 18 of which provides
for commitment to the Veterans' Administration or other agency of the
United States Government for care or treatment of persons of unsound
mind or otherwise in need of confinement who are eligible for such
acre or treatment, furnishes an example of State statutes which do
not specify a
235
requirement for domicile or residence within the State for
eligibility for probate relief.
A dearth of decisions on questions of the jurisdiction of State
courts to act as a forum for probate relief to residents of exclusive
Federal jurisdiction areas makes it similarly evident that potential
legal questions relating to forum and jurisdiction usually remain
submerged. So, Chief Justice Bond in his opinion in the Lowe case
discussed above. stated (133 A. 729, 734): "It has been the practice
in the orphans' court of Baltimore City to receive probate of wills,
and to administer on the estates, of persons resident at Ft. McHenry,
and it has also, I am informed, been the practice of the orphans'
court of Anne Arundel county to do the same thing with respect to
wills and estates of persons claiming residence within the United
States Naval Academy grounds. We have no information as to the
practice elsewhere, but it would seem to me inevitable that the
practice of the courts generally must have been to provide such
necessary incidents to life on reservations within the respective
states. Several Federal agencies have been granted congressional
authority enabling disposition of the personal assets of patients and
members of their establishments. This has curtailed
236
what otherwise would constitute numerous and pressing problems.
However, notwithstanding the holdings in the Divine, Kernan, and Shea
cases, and in several divorce proceedings there appear to exist other
serious legal and practical problems relating to procurement by or
with respect to residents of exclusive federal jurisdiction areas of
relief ordinarily made available by probate courts. While such
relief is in instances essential, the federal courts, except those of
the District of Columbia, have no probate jurisdiction. And because
of the possibility that relief procured in a State court may be
subject to collateral attacking a different State, it will not be
clear until a decision of the Supreme Court of the United States is
had on the matter whether even a decree rendered under an enabling
State statute (except a statute reserving jurisdiction sufficient
upon which to render the relief) must be accorded full faith and
credit by other States when the residence upon which the original
court based its jurisdiction upon an area under exclusive Federal
jurisdiction."
Miscellaneous rights and privileges. The Opinion of the
Justices, 1 Metc. 580 (Mass., 1841)., discussed at several points
above, held that residence on an exclusive Federal jurisdiction
237
area, for any length of time, would not give persons so residing or
their children a legal inhabitancy in the town in which such area was
located for the purpose of their receiving support under the laws of
the Commonwealth for the relief of the poor. Numerous miscellaneous
rights and privileges, other than those hereinbefore discussed, are
often reserved under the laws of the several States for residents of
the respective States. Among these are the right or privilege of
employment by the State or local governments, of receiving a higher
education at State institutions free or at a favorable tuition, of
acquiring hunting and fishing licenses at low cost, of receiving
visiting nurse service or care at public hospitals, orphanages,
asylums, or other institutions, of serving on juries, and of acting
as an executor of a will or administrator of an estate. Different
legal rules may apply, also, with respect to attachment of property
of non-residents.
It has been declared by many authorities and on numerous
occasions, other than in decisions heretofore cited in this chapter,
that areas under the exclusive legislative jurisdiction of the United
States are not a part of the State in which they are embraced and
that residents of such areas consequently are not entitled to civil
or political privileges, generally, as State residents. Accordingly,
residents of Federal areas are subject to these additional
disabilities except in the States reserving civil and political
rights to such residents (California and, in certain instances,
Nevada), when legislative jurisdiction over
238
the areas is acquired by the Federal Government under existing State
statutes. The potential impact of any widespread practice of
discrimination in certain of these matters can be measured in part by
the fact that there are more than 43,000 acres of privately owned
lands within National Parks alone over which some major measure of
jurisdiction has been transferred to the Federal Government. It
appears, however, that such discriminations are not uniformly
practiced by State and local officials, and no judicial decisions
have been found involving litigation over matters other than
education, voting and holding elective State office, divorce, and
probate jurisdiction generally.
CONCEPTS AFFECTING STATUS OF RESIDENTS: Doctrine of
extraterritoriality.--It may be noted that the decisions denying to
residents of exclusive Federal jurisdiction areas right or privileges
commonly accorded State residents of so on the basis that such areas
are not a part of the State, and that residence thereon therefore
does not constitute a person a resident of the State. This doctrine
of extraterritoriality of such areas was enunciated in the very
earliest judicial decision relating to the status of the areas and
their residents, Commonwealth v. Clary, 8 Mass. 72 (1811). The
decision was followed in Mitchell v. Tibetts, 17 Pick. 298 (Mass.,
1936), and the two decisions were the basis of the Opinion of the
Justices, 1 Metc. 580 (Mass., 1841). Subsequent decisions to the
same effect invariably cite these cases, or cases based upon them, as
authority for their holdings. The views expounded by the courts in
such decisions are well set out in Sinks v. Reese, where the Supreme
Court of Ohio invalidated a proviso in a State consent statute
reserving
239
a right to vote to residents of a veterans' asylum because of a State
constitutional provision which did not permit extension of voting
rights to persons not resident in the State. The Ohio court said (19
Ohio St. 306, 316 (1889)):
* * * By becoming a resident inmate of the asylum, a person
though up to that time he may have been a citizen and resident
of Ohio, ceases to be such; he is relived from any obligation to
contribute to her revenues, and is subject to none of the
burdens which she imposes upon her citizens. He becomes subject
to the exclusive jurisdiction of another power, as foreign to
Ohio as is the State of Indiana or Kentucky or the District of
Columbia. The constitution of Ohio requires that electors shall
be residents of the State; but under the provisions of the
Constitution of the United States, and by the consent and act of
cession of the legislature of this State, the grounds and
buildings of this asylum have been detached and set off from the
State of Ohio, and ceded to another government, and placed under
its exclusive jurisdiction for an indefinite period. We are
unanimously of the opinion that such is the law, and with it we
have no quarrel; for there is something in itself unreasonable
that men should be permitted to participate in the government of
a community, and in the imposition of charges upon it, in whose
interests they have no stake, and from whose burdens and
obligations they are exempt.
Arledge v. Mabry, 52 N.M. 303, 197 P.2d 884 (1948), (voting
privilege denied) and Schwartz v. O'Hara Township School Dist., 375
Pa. 440, 100 A.2d 621 (1953), (public school education privilege
denied) are two recent cases in which this doctrine was applied.
Contrary view of extraterritoriality.--The view that residents
of areas of exclusive legislative jurisdiction are not residents or
citizens of the State in which the area is situated has
240
not gone unquestioned. In Woodfin v. Phoebus, 30 Fed. 289
(C.C.E.D.Va., 1887), the court said (pp. 296-297):
Although I have thought it unnecessary to pass upon the question
whether Mrs. Phoebus and her children, defendants in this suit,
by residing at Fortress Monroe, were by that fact alone non-
residents and not citizens of Virginia, yet I may as well say,
Obiter, that I do not think that such is the result of that
residence. Fortress Monroe is not a part of Virginia as to the
right of the state to exercise any of the powers of government
within its limits. It is dehors the state as to any such
exercise of the rights of sovereignty, that inhabitants there,
especially the widow and minor children of a deceased person,
thereby lose their political character, and cease to be citizens
of the state. Geographically, Fortress Monroe is just as much a
part of Virginia as the grounds around the capital of the state
at Richmond,--"Fortress Monroe, Virginia," is its postal
designation. Can it be contended that, because a person who may
have his domicile in the custom-house at Richmond, or in that at
Norfolk, or at Alexandria, or in the federal space at Yorktown,
on which the monument there is built, or in that in Westmoreland
county, in which the stone in honor of Martha Washington is
erected, loses by that fact his character of a citizen of
Virginia? Would it not be a singular anomaly if such a residence
within a federal jurisdiction should exempt such a person from
suit in a federal court. Can it be supposed that the authors of
the constitution of the United States, in using the term
"citizens of different states." meant to provide that the
residents of such small portions of states as should be acquired
by the national government for special pur-
241
posses, should lose their geographical and political identity
with the people of the states embracing these places, and be
exempt by the fact of residence on federal territory from suit
in a federal court? I doubt if it would ever be held by the
supreme court of the United States that the cession of
jurisdiction over places in states for national used, such as
the constitution contemplates, necessarily disenfranchised the
residents of them, and left them without any political status at
all. In the western territories of the United States,
governments are provided on the very ground that no state
authority exists. In the District of Columbia, a government is
provided under the control of congress. In the territories and
the federal district, a condition of things exists which
excludes the theory of any reservation of rights to the
inhabitants of the body politic to which they had before
belonged. I see no reason for insisting that persons are cut
off from membership of the political family to which they had
belonged by the cession to the United States of sovereign
jurisdiction and power over forts and arsenals in which they had
resided.
I suggest these thoughts in the form of quaere, and make what is
said no part of the adjudication of the case. But see U.S. v.
Cornell, 2 Mason, 60; Com. v. Clary, 8 Mass. 72; Sinks v. Reese,
19 Ohio St. 306; Foley v. Shriver, 10 Va.Law J. 419.
In Howard v. Commissioners, 344 U.S. 624 (1953), the Supreme
Court had occasion to pass directly on the question of
extraterritoriality of Federal enclaves, although liability of the
occupants of a Federal enclave to taxation by a municipality under
the Buck Act, rather than their eligibility to privileges as
residents of the State, was the ultimate issue for the court's
decision. The court said (p. 626):
242
The appellants first contend that the City could not annex this
federal area because it had ceased to be a part of Kentucky when
the United States assumed exclusive jurisdiction over it. With
this we do not agree. When the United Stated, with the consent
of Kentucky, acquired the property upon which the Ordnance Plant
is located, the property did not cease to be a part of Kentucky.
The geographical structure of Kentucky remained the same. In
rearranging the structural divisions of the Commonwealth, in
accordance with state law, the area became a part of the City of
Louisville, just as it remained a part of the County of
jefferson and the Commonwealth of Kentucky. A state may conform
its municipal structures to its own plan, so long as the state
does not interfere with the exercise of jurisdiction within the
federal area by the United States. Kentucky's consent to this
acquisition gave the United States power to exercise exclusive
jurisdiction within the area. A change of municipal boundaries
did not interfere in the least with the jurisdiction of the
United States within the area or with its use or disposition of
the property. The fiction of a state within a state can have no
validity to prevent the state from exercising its power over the
federal area within its boundaries, so long as there is no
interference with the jurisdiction asserted by the Federal
Government. The sovereign rights in this dual relationship are
not antagonistic. Accommodation and cooperation are their aim.
It is friction, not fiction, to which we must give heed.
The decision in the Howard case would seen to make untenable the
premise of extraterritoriality upon which most of the deci-
243
sions denying civil political rights and privileges are squarely
based.
Theory of incompatibility.--In some instances, usually where the
courts have not been entirely explicit on this matter in the language
of their opinions, it can be on construed that decisions denying
civil or political rights to residents of exclusive Federal
jurisdiction areas are based simply on a theory that exercise of such
rights by the residents would be inconsistent with federal exercise
of "exclusive legislation" under the Constitution.
Weaknesses in incompatibility theory.--Historical evidence
supports the contrary view, namely, that article I, section 8, clause
17, of the Constitution, does not foreclose the States from extending
civil rights to inhabitants of Federal areas. As was indicated in
chapter II, James Madison, in response to Patrick Henry's contention
that the inhabitants of areas of exclusive Federal legislative
jurisdiction would be without civil rights, stated that the States,
at the time they ceded jurisdiction, could safeguard these rights by
making "what stipulations they please" in their cessions to the
Federal Government. If a stipulation by a State safeguarding such
rights in not incompatible with "exclusive legislation," it might
well be argued that unilateral extension of the rights by a State
after the transfer of jurisdiction is entirely permissible; for it
would seem that the possession of State rights by the residents,
rather than the timing of the securing of such rights, would create
any incompatibility. And objections of incompatibility with
exclusive Federal jurisdiction of State extension of such rights as
voting to residents of Federal enclaves would seem answerable with
the words of the Supreme Court in its opinion in the Howard case,
supra: "The sovereign rights in this dual relationship are not
antagonistic. Accommodation and cooperation are their aim. It is
friction, not fiction, to
244
which we must give heed." What is more, truly exclusive Federal
jurisdiction, as it was known in the time of the basic decisions
denying civil and political rights and privileges to residents of
Federal enclaves, no longer exists except as to the District of
Columbia.
Former exclusivity of Federal jurisdiction.--The basic decisions
and most other decisions denying civil or political rights and
privileges to residents of Federal enclaves were rendered with
respect to areas as to which the States could exercise no authority
other than the right to serve process, and in many of these reference
is made in the opinions of the court to the fact that residents of
the areas were not obliged to comply with any State law or to pay any
State taxes. It will be recalled that until comparatively recent
times it was thought that there could not be transferred to the
Federal Government a lesser measure of jurisdiction than exclusive.
Present lack of Federal exclusivity.--That period is past,
however, and numerous States now are reserving partial jurisdiction.
Moreover, beginning in June 1936, by a number of statutes the Federal
Government has retroceded to the States (and their political
subdivisions) jurisdiction variously to tax and take other actions
with respect to persons and transactions in areas under Federal
legislative jurisdiction. Consequently, and notwithstanding the
definition given the term "exclusive legislative jurisdiction" for
the purposes of this work, there would seem at present to be no area
(except the District of Columbia) in which the jurisdiction of the
Federal Government is truly exclusive, and residents of such areas
are liable to numerous State and local tax laws and at least some
other State laws.
245
Rejection of past concepts.--In Arapajolu v. McMenamin,
discussed above, the Supreme Court of the State of California, taking
cognizance of factors outlined above, held residents of areas over
which the Federal Government had legislative jurisdiction to be
residents of the State. In determining them entitled to vote as such
residents, the court stated and disposed of a final argument as
follows (249 P.2d 318, 323):
Respondents argue in their brief: "The states could have
reserved the right to vote at the time of the original cession
where such right did not conflict with federal use of the
property * * * but did not do so." We cannot follow the force
of this argument. The State of California did not relinquish to
the United States the right of citizens resident on federal
lands to vote nor did the United States acquire those rights.
The right to vote is personal to the citizen and depends on
whether he has net the qualifications of section 1, Art. II of
our Constitution. If the State retains jurisdiction over a
federal area sufficient to justify a holding that it remains a
part of the State of California a resident therein is a resident
of the State and entitled to vote by virtue of the
Constitutionally granted right. No express reservation of such
rights is necessary, nor cold any attempted express cession of
such rights to the United States be effective.
Interpretations of Federal grants of power as retrocession.--In
asserting the existence at the present time of "jurisdiction" in the
State of California over what were formerly "exclusive"
246
Federal jurisdiction lands, the court said in the Arapajolu case (249
P.2d 322):
* * * The power to collect all such taxes depends upon the
existence of State jurisdiction over such federal lands and
therefore may not be exercised in territory over which the
United States has exclusive jurisdiction. Standard Oil Co. v.
California, 291 U.S. 242. 54 S.Ct. 381, 78 L.Ed. 775. In
recognition of this fact the Congress has made these recessions
to the States in terms of jurisdiction, e.g. 4 U.S.C.A. Secs.
105 and 106: "and such State or taxing authority shall have full
jurisdiction and power to levy and collect any such tax in any
Federal area within such State * * *"; 26 U.S.C.A. Sec. 1606
(d): "and any State shall have full jurisdiction and power to
enforce the provisions of such law * * * as though such place
were not owned, held, or possessed by the United States."
In Kiker v. Philadelphia, 346 Pa. 624, 31 A.2d 289 (1943), cert.
den., 320 U.S. 741, previously discussed at page 203, above, the
Supreme Court of Pennsylvania referred to the Buck Act as a
"recession of jurisdiction" to the State when upholding applicability
thereunder of a municipal tax to the income of a Federal employee
earned in a Federal enclave. A holding to the same effect was had in
Davis v. Howard, 306 Ky. 149, 206 S.W.2d 467 (1947).
247
Interpretation of such statutes as Federal retrocession of
partial jurisdiction to the States apparently is essential, since
States seemingly would require "jurisdiction" to apply taxes
generally, and the tax and other provisions of their workmen's and
unemployment compensation acts, at least as to persons over whom they
have no authority except as may arise from the presence of such
persons on an "exclusive" Federal jurisdiction area. Thus, in
Atkinson v. State Tax Commission, 303 U.S. 20 (1938), the Supreme
Court held (p. 25) that the enforcement by a State of its workmen's
compensation law in a Federal area was "incompatible with the
existence of exclusive legislative authority in the United States."
And in S.R.A., Inc. v. Minnesota, 327 U.S. 558 (1946), it stated that
the levy by Minnesota of a tax evidenced its acceptance of a
retrocession of jurisdiction.
Summary of contradictory theories on rights of residents.--
Arledge v. Mabry and Schwartz v. O'Hare Township School District, it
may be said, represent cases maintaining strictly the principle of
star decisis on questions of exercise of State rights by residents of
Federal areas. They uphold the doctrine of extraterritoriality of
Federal enclaves and the theory of incompatibility between exercise
of State rights by residents of Federal areas and Federal possession
of jurisdiction over such areas. Under the view taken in these cases
the only modifications which need to be made for modernizing the very
early decisions upon which they are fundamentally based are those
which patently are required for enforcing States laws the extension
of which is authorized to Federal areas by Federal laws; in other
words, no consequences whatever flow from a Federal retrocession of
partial jurisdiction to a State other than that
248
the State may exercise the retroceded powers. Under this view, it
would seem, residents of areas over which the Federal Government has
any jurisdiction can enjoy State rights and privileges, unless
reserved for the residents in the transfer of jurisdiction, only if
Congress expressly retrocedes jurisdiction over such rights and
privileges to the States. It may also be said, on the other hand,
that Arapajolu v. McMenamin, and to some extent Adams v. Londeree,
the several other cases cited in this chapter upholding the right of
persons to privileges under State laws, and cases upholding the right
of States to exercise governmental authority in areas as to which the
Federal Government has jurisdiction, indicate at least a trend away
from the old cases and to abandonment of the doctrine of
extraterritoriality and the theory of incompatibility. And this
trend in the judicial recognition of the existence of State civil and
political rights in residents of Federal enclaves would seem to be
given considerable authority first: by the decision of the Supreme
Court in Howard v. Commissioners, supra, rejecting the
extraterritoriality doctrine, although, like the similar decision of
the Supreme Court of Pennsylvania in Kiker v. Philadelphia, the
Howard decision immediately related to a State's rights over
individuals in Federal enclaves rather than to individuals' rights to
privileges under State law, and second: by present exercise by
States of considerable tax and other jurisdiction over Federal
enclaves and residents thereof, opening the way to questions of State
citizenship of persons domiciled on such areas, nd of abridgment of
their privileges, under the 14th Amendment. Residents of an exclusive
Federal jurisdiction area, it has been held with respect to the
District of Columbia, may not be deprived of the constitutional
guarantees respecting life, liberty, and property.